FORCED DURING THE KHMER ROUGE REGIME Acknowledging Forced Pregnancy As a Distinct Crime in the ECCC Proceedings

María Lobato FORCED PREGNANCY DURING THE KHMER ROUGE REGIME

Acknowledging Forced Pregnancy As a Distinct Crime in the ECCC Proceedings

María Lobato María Lobato is human rights lawyer and practitioner focusing on issues related to gender justice, rule of law and development. She has a LL.B. with Honours from the University of Buenos Aires, Argentina, and a LL.M. (Human Rights and Social Justice) from the University of New South Wales, Australia. María has worked on matters of transitional justice and international criminal law at the Argentinian judiciary, the Extraordinary Chambers in the Courts of Cambodia and the Heinrich Böll Foundation Cambodia.

The Cambodian Human Rights Action Coalition (CHRAC) was created in August 1994 by a group of local non- governmental organizations and associations for the purpose of joint cooperation in the promotion of human rights, democracy and development in the Kingdom of Cambodia. Since its establishment, new members have successively joined CHRAC. Today, CHRAC has 21 independent, impartial, non-political and non-profit member organizations operating in the Kingdom. Since 2008, CHRAC and its members have been actively involved with the trials at the Extraordinary Chambers in the Courts of Cambodia by monitoring the Court’s work, engaging in a number of outreach activities, and assisting Khmer Rouge victims to become admitted as civil parties at the Tribunal. Currently, CHRAC’s Khmer Rouge Tribunal Project is focusing on three main fields: (1) outreach (2) promotion of the legacy of the Tribunal, and (3) judicial reparation projects for civil parties.

Phnom Penh 2016 © Cambodian Human Rights Action Coalition 2016 all rights reserved. ii iii Table of Contents

Acknowledgement I acronyms 1 II executive summary 3

I would like to thank Linda Benhke, Theresa de Langis, Jacqueline III introduction 5 Fetchet, Joseph Holt, Peg LeVine, James Muldoon and Silke Studzinsky for their insightful observations and continuous IV forced pregnancy under international 7 support of the present work. criminal law I would also like to acknowledge the Heinrich Boell Foundation A. Definition (HBF) Cambodia where I worked on issues of sexual and gender B. Forced pregnancy before International based violence. During this time I first identified the need to Criminal Courts look further into the criminality of forced pregnancy under V forced pregnancy during the khmer rouge 11 international criminal law. This project would not have been regime possible without funding through the Civil Peace Service of A. Transformation of Life during Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ). Democratic Kampuchea 1. Dismantling the Family 2. Forced Marriages 3. Reproduction of the Population Illustrations: B. within Forced Marriages Dina Chhan http://www.artistdina.com C. Forced VI ACKNOWLEDGING FORCED PREGNANCY AS A 23 DISTINCT CRIME IN THE ECCC PROCEeDINGS Graphic Design: David Pinho A. Forced Pregnancy as an Inhumane Act Typesetting: Billy Chia-Lung Tai B. Elements of the Crime 1. Forcible impregnation 2. Unlawful confinement 3. Specific intent 4. Chapeau requirements C. Forced Pregnancy before the ECCC 1. Case 002 (i) Investigative stage (ii) Trial stage: recharacterisation and cumulative convictions 2. Cases 003 and 004

VII conclusions 35

VIII Recommendations 37

iX Bibliography 39 iv v Forced Pregnancy during the Khmer Rouge Regime i acronyms

I II ACRONYMS executive summary

CPK Communist Party of Kampuchea Forced pregnancy in international law CPL Civil Party Lawyers • Forced pregnancy has been long employed as a tool of warfare. CPLCL Civil Party Lead Co-Lawyers • In spite of this prevalence, forced pregnancy has only emerged as a distinct international crime after the adoption DK Democratic Kampuchea of the Rome Statute of the International Criminal Court in 1998. ECCC Extraordinary Chambers in the Courts of Cambodia • No international or mixed criminal tribunal has prosecuted the crime of forced pregnancy thus far. OCIJ Office of the Co-Investigating Judges Forced pregnancy during the Khmer Rouge regime

OCP Office of the Co-Prosecutors • As the Communist Party of Kampuchea (CPK) progressively took control over parts of Cambodian territory, couples TC Trial Chamber were systematically forced into marriages in alignment with party ideology. TPO Transcultural Psychosocial • One of the main objectives of forced marriages was the Organisation production of children, who would become vital additions to the regime’s workforce and revolutionary ranks. SCSL Special Court of Sierra Leone • Newly-wed couples were usually compelled to have sex and consummate their marriages under the threat of SPSC Special Panel for Serious Crimes in East Timor punishment. • An alarmingly high number of forced marriages ended up VSS Victims Support Section in forced pregnancies.

vi P 1 Forced Pregnancy during the Khmer Rouge Regime III introduction

• Women victims of forced pregnancy suffered bodily and mental harm as a consequence of the crime, enduring: - physical pain as a result of being forced to bear a child during times of starvation and forced labour, III without access to health care and being forced to work immediately after delivering their babies; Introduction - mental suffering, derived from their inability to perform traditional rituals during and after birth work and conflicted feeling arising from loving a child conceived in traumatic circumstances; During the last decade, there has been growing awareness - socio-economic consequences derived from having to of the issue of sexual and gender-based violence during the raise a child. Democratic Kampuchea (DK) regime. Research on the topic has demonstrated that a policy was implemented, which aimed Forced pregnancy before the Extraordinary Chambers in the to control and regulate the institution of the family through Courts of Cambodia (ECCC) . Evidence in Case 002 before the Extraordinary Chambers in the Courts of Cambodia (ECCC) has revealed that • The suffering endured by victims of forced pregnancy can couples were often forced to consummate these marriages with only be adequately represented through the application of the clear objective of producing children for the regime. Women a specific legal category. who fell pregnant as a consequence of this policy were forced to • The crime of forced pregnancy may be prosecuted before the bear children under dreadful conditions. This report proposes ECCC through the provision that codifies ‘other inhumane that these forced pregnancies produce a distinct form of harm, acts’ as a crime against humanity under Article 5 of the which should be treated as a distinct crime against humanity ECCC Law. before the ECCC, both in the ongoing trial in Case 002/02 and in the Cases 003 and 004 under investigation. • The facts incorporated into the Closing Order in Case 002 establish the elements of the crime of forced pregnancy: the forced impregnation and unlawful confinement of women during the Democratic Kampuchea (DK) regime. This sets the basis for a legal recharacterisation of the facts under ECCC Internal Rule 98 (2). • Forced pregnancy should be further acknowledged as a distinct crime against humanity in the ongoing investigations in Cases 003 and 004. • The recognition of forced pregnancy as a distinct crime against humanity would reflect the totality of the criminal conduct, the dimension of the crime and its impact on society.

P 2 P 3 Forced Pregnancy during the Khmer Rouge Regime IV forced pregnancy under international law

IV forced pregnancy under international law

Forcibly impregnating women and compelling them to carry the pregnancies to term has been long employed as a tool of warfare. From the Athenian campaign to kill Melian men and assimilate women into sexual and forced pregnancy, to the use of rape and forced impregnation by the British to break the Scottish clan system, forced pregnancy has been deliberately utilised to disrupt the unity of a cultural group.1 Forced pregnancy campaigns have also pursued ulterior forms of control over the reproduction of life. This has included the kidnapping of Sabin women by Romans to procreate and augment the population, the raping of slave women in the United States to produce new slaves for their patrons and the forced impregnation of Jewish women during the World War II to obtain foetuses for medical experimentation.2 Reports indicate that children were also born as a consequence of rape in Bosnia, Sudan, East Timor, Sierra Leone, Rwanda, Bangladesh and Cambodia.3

1 Robyn Charli Carpenter, ‘Forced Maternity: Children’s Rights and the Convention’ (2000) 2 Journal of Genocide Research 213, footnote 36. 2 Adrien Katherine Wing and Sylke Merchan, ‘Rape, ethnicity and culture: spirit injury from Bosnia to black America’ (1993-1994) 25 (1) Columbia Human Rights Law Review 1, 35; Barbara Bedont and Katherine Hall-Martinez, ‘Gender Crimes Under the International Criminal Court’ (1999) 6 Brown Journal of World Affairs 65, 74; Livy, The Early History of Rome (Harmondsworth, 1960) Vol 1, 1.9. 3 R. Charli Carpenter, Forgetting children born of war: setting the human rights agenda in Bosnia and beyond (Columbia University Press, 2010); Lydia Polgreen, ‘Darfur’s Babies of Rape Are on Trial From Birth’, The New York Times (New York) 11 February 2005; Susan Gail Harris Rimmer, Transitional Justice and the Women of East Timor (PhD Thesis, Australian National University, 2008) 298; Miranda Sissons, (East Timor Human Rights Centre Incorporated, 1997); Chris Coulter, Bush Wives and Girl Soldiers. Women’s Lives Through War and Peace in Sierra Leone (Cornell University Press, 2009); James McKinley Jr, ‘Legacy of Rwanda Violence: The Thousands Born of Rape’, The New York Times (New York)

P 4 P 5 Forced Pregnancy during the Khmer Rouge Regime IV forced pregnancy under international law

In spite of this prevalence, forced pregnancy has only emerged grave violations of international law.’9 The Elements of Crimes as a distinct international crime after the adoption of the Rome do not further expound this provision.10 Statute of the International Criminal Court in 1998.4 Distinct The crime of forced pregnancy includes two separate acts: provisions criminalising the discrete crime of forced pregnancy have later been incorporated into the Regulation of the Special • forcible impregnation: falling pregnant as a result of a Panels for Serious Crimes in East Timor (SPSC) and the Special rape or an illegal medical procedure; 5 Court for Sierra Leone (SCSL). • unlawful confinement: forcibly compelling a woman to carry a pregnancy to term.11 A. Definition The actus reus, however, is not the forced impregnation, but The only existing definition of forced pregnancy in international the unlawful confinement of a forcibly impregnated woman.12 criminal law is found in the Rome Statute, where the crime is Forced pregnancy under the Rome Statute further requires the codified both as a crime against humanity and a .6 additional motivation of ‘affecting the ethnic composition of any During the negotiations of the Rome Statute, discussions on the population or carrying out other grave violations of international issue proved to be one of the most controversial topics.7 Some law.’ Such restriction in the scope of the crime was a consequence delegations advocated against its inclusion, arguing that it was of the opposition from the delegations of certain states and the only a consequence of rape aggravated by the circumstances of lobby of anti-choice groups during the negotiations of the Rome the resulting pregnancy, rather than a crime in its own right.8 Statute.13 No other statutory provision establishes a specific intent for an offence to configure a crime against humanity.14 Article 7 (2) defines forced pregnancy as the ‘unlawful confinement This requirement has been the object of strong criticisms for of a woman forcibly made pregnant, with the intent of affecting shaping the offence as a crime against a particular ethnic group, the ethnic composition of any population or carrying out other rather than focusing on the suffering of women.15

23 September 1996; Human Rights Watch, Shattered Lives: during the Rwandan Genocide and its Aftermath (1996); Alexandra Takai, ‘Rape and Forced B. Forced Pregnancy before International Criminal Courts. Pregnancy as Genocide before the Bangladesh Tribunal’ (2011) 25 (2) Temple International Law and Comparative Law Journal 393. No international or mixed criminal tribunal has prosecuted the 4 Rome Statute of the International Criminal Court, opened for signature 17 July crime of forced pregnancy thus far.16 In the Brima case before 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Statute’); Kirsten Boon, ‘Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy and Consent’ (2000-2001) 32 Columbia Human Rights Law Review 625, 9 Rome Statute art 7 (2). 656; Bedont and Hall-Martinez, above n 2, 66-67. 10 William A. Schabas, The International Criminal Court: A Commentary on the 5 Section 5.1(g) of the Regulation No 2000/15 on the Establishment of Panels Rome Statute (Oxford Commentaries on International Law, 2010) 174; with Exclusive Jurisdiction over Serious Criminal Offenses, UNTAET/ International Criminal Court, Elements of Crimes (2011). REG/2000/15 (6 June 2000) (‘UNTAET Regulation’); Article 2 (g) Agreement 11 Kai Ambos, Treatise on International Criminal Law. Volume II: The Crimes and Sentencing between the United Nations and the Government of Sierra Leone on the (2014) 102. Establishment of a Special Court for Sierra Leone, signed 16 January 2002, 12 Milan Markovic, ‘Vessels of Reproduction: Forced Pregnancy and the ICC’ 2178 UNTS 137 (entered into force 12 April 2002) (‘Statute of the Special Court of Sierra (2007) 16 Michigan State Journal of International Law 439, 442; Boon, above n 4, 660. Leone’). 13 Bedont and Hall-Martinez, above n 2, 74. 6 Rome Statute art 7 (1) (g) and art 8 (2) (b) (xxii). 14 Christine Chinkin, ‘Fundamentals of International Criminal Law, Gender- 7 Bedont and Hall-Martinez, above n 2, 73-74. related Violence and International Criminal Law and Justice’ in Antonio 8 Alyson M. Drake, ‘Aimed at Protecting Ethnic Groups or Women? A look at Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford Forced Pregnancy Under the Rome Statute’ (2012) 18 (3) William & Mary Journal of University Press, 2009) 75, 77. Women and the Law 595, 619. 15 Drake, above n 8, 617. 16 Harris Rimmer, above n 3, 298; Schabas, above n 10, 174.

P 6 P 7 Forced Pregnancy during the Khmer Rouge Regime V forced pregnancy during the khmer rouge regime the SCSL, the trial incorporated evidence proving that women victims of forced marriage – known as ‘bush wives’ – were forced to give birth and rear children.17 However, charges on forced pregnancy did not form part of the indictment.18 V Practitioners in international criminal law continue to perceive Forced pregnancy during the this offence as a consequence of other crimes of sexual violence rather than violations of international criminal law in its own khmer rouge regime right. This still rings true in Cambodia, where forced pregnancy as a distinct crime has yet to be adequately addressed, despite increasing attention to gender crimes. The main objective of the Communist Party of Kampuchea (CPK) was to transform Khmer society and culture into a new revolutionary order. This new order would be based on the collectivisation of private property and be free from any colonialist or capitalist influence.19 Accordingly, certain institutions regarded as feudal, such as the village, the pagoda and the family, were to be either dissolved or modified.20 As a powerful institution and the most respected of all relationships in Cambodian traditional society, family was subject to radical changes during this period.21 This section analyses the transformation of the family structure during the DK regime to pursue CPK’s revolutionary goals.

A. Transformation of Family Life during Democratic Kampuchea

1. Dismantling the Family 17 Prosecutor v Brima et al (Judgment) (Special Court for Sierra Leone, Trial Family life and individualism were seen as a threat to people’s Chamber II, SCSL-2004-14-16-T, 20 June 2007) (‘AFRC Trial Judgment’) [991] loyalty to the revolution under CPK’s ideology.22 In order to ensure [1080] [1082] [1091] [1113] [1184]; AFRC Trial Judgment (Justice Teresa Doherty) [30]; Prosecutor vs Brima et al (Judgment) (Special Court for Sierra Leone, Appeals Chamber, SCSL-2004-17-A, 22 February 2008) (‘AFRC Appeals Judgment’) 19 For a complete account of the period see David Chandler, A History of Cambodia [190]. (Westview Press, 3rd ed, 2000) and Elizabeth Becker, When the War Was Over 18 Prosecutor v Brima et al (Amended Consolidated Indictment) (Special Court for (Public Affairs, 1st ed, 1998). Sierra Leone, Prosecutor, SCSL-2004-16-PT, 13 May 2004). The SCSL Appeals 20 Chandler, above n 19, 209; May Mayko Ebihara, ‘Revolution and Reformation Chamber was the first international criminal tribunal to recognise forced in Kampuchean Village Culture’ in David A. Ablin and Marlowe Hood (eds), marriage as a crime against humanity in its own right. Paradoxically, this The Cambodian Agony (Armonk, 2nd ed, 1990) 16, 23. entailed a concealment of other types of gender-based violence under the 21 Becker, above n 19, 211; Kalyanee Mam, ‘An Oral History of Family Life under label of a marriage. See AFRC Appeals Judgment [197] - [203]; Bridgette A Troy the Khmer Rouge’ (Working Paper GS 10, Yale Center for International and Cronin, ‘What is Forced Marriage? Towards a Definition of Forced Marriage Area Studies, 1998) 2; Ebihara, ‘Revolution and Reformation in Kampuchean as a Crime against Humanity’ (2010) 19 (2) Columbia Journal of Gender and Law Village Culture’, above n 20, 28. 539, 577-579. 22 Chandler above n 19, 209; Ebihara, ‘Revolution and Reformation in

P 8 P 9 Forced Pregnancy during the Khmer Rouge Regime V forced pregnancy during the khmer rouge regime individuals’ commitment to the revolutionary cause, the CPK in alignment with party ideology.30 In the majority of cases, attempted to restructure society in the image of one collective couples were contacted shortly before the marriage ceremony family headed by Angkar – literally, ‘the Organisation’, a term and informed that they were to be married.31 On certain used to describe the Party and its leaders at different levels.23 occasions, the couples had not even seen each other’s faces before the wedding.32 Some male cadres asked permission to Familial relationships were therefore carefully decided by the wed someone of their own choice, while in other cases chiefs collective, under the directives of Angkar.24 Since family matters of the work camps acted as matchmakers, coupling individuals were regarded as key to the success of the revolution, they were from the same region.33 Ceremonies were organised en masse strictly monitored and controlled.25 Guidelines were developed to by Khmer Rouge cadres, involving anywhere from two to 300 regulate how individuals could choose their spouses and when couples.34 Some victims of forced marriage were forced to include the appropriate age was to do so.26 the promise to produce children for Angkar into their marriage Family life, however, was not meant to absorb any of the time vows.35 Refusal to accept the marriage proposed by Angkar often required by the revolution.27 Both existing and new were usually separated through the collectivisation of the work and 30 Case 002 Closing Order [216]. For a thorough analysis of forced marriages living arrangements in order to ensure absolute fidelity to the during the Khmer Rouge regime see Theresa de Langis, Judith Strasser, Thida revolutionary cause.28 The effectiveness of terror relied heavily Kim, Sopheap Taing, Like Ghost Changes Body: A Study on the Impact of Forced Marriage on the destruction of meaningful interpersonal bonds.29 During the Khmer Rouge Regime (Transcultural Psychosocial Organisation, 2014). TPO’s report offers some limitations to the understanding of forced marriage, as all respondents are Civil Party plaintiffs to the ECCC, the ratio 2. Forced Marriages of female respondents to male respondents is imbalanced and the research was undertaken with a small sample of respondents. Findings cannot be As the CPK progressively took control over parts of Cambodian extrapolated to the total population or to other victims of forced marriage. territory, couples were systematically forced into marriages See also Kasumi Nakagawa, Gender-based violence during the Khmer Rouge Regime. Stories of survivors from the Democratic Kampuchea (Phnom Penh, 2nd ed, 2008) 13-18; Beini Ye, ‘Forced Marriages as Mirrors of Conflict Transformation’ (2011) 23 (4) Peace Review: A Journal of Social Justice 469. Kampuchean Village Culture’, above n 20, 23; Kalyanee Mam, ‘An Oral 31 De Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage History of Family Life under the Khmer Rouge’, above n 21, 3. During the Khmer Rouge Regime, above n 30, 54. 23 Becker, above n 19, 225 - 226; Kalyanee Mam, Democratic Kampuchea (1975-1979): 32 The 2000 Cambodia Demographic and Health Survey reported a 59.7 % of Women as Instruments for Social Change (Documentation Center of Cambodia, women married during the DK regime who met their husbands the day of 2000) 33-46; François Ponchaud, ‘Social Change in the Vortex of Revolution’ the wedding. See Patrick Heuveline and Bunnak Poch, ‘Do Marriages Forget in Karl D. Jackson (ed), Cambodia 1975-1978. Rendezvous with Death (Princeton their Past? Marital Stability in Post-Khmer Rouge Cambodia’ (2006) 43 (1) University Press, 1989) 151, 164. For a definition of Angkar see Case 002 Demography 99, 110. (Closing Order) (Extraordinary Chambers in the Courts of Cambodia, Office 33 Peg LeVine, Love and Dread in Cambodia. Weddings, Births and Ritual Harm under the of the Co-Investigating Judges, Case File No.: 002/19-09-2007-ECCC-OCIJ, 15 Khmer Rouge (NUS Press, 2010) 16. LeVine performs an extensive analysis September 2010), as per amended by the Pre-Trial Chamber on 13 January of cultural disruption in marriages and births during the DK regime. She 2011 (‘Case 002 Closing Order’) [18]. discards the term ‘forced marriages’ and suggests instead ‘conscripted 24 Case 002 (Revolutionary and Non-Revolutionary: World Views Regarding the Matters of marriages’ as a more accurate term from an anthropological perspective. Family Building: An accurate re-print of the Youth issue dated 2 February 1974, CPK East Zone Nonetheless, LeVine acknowledges that married couples during the DK Political-Military Ministry, 2 June 1975) (Extraordinary Chambers in the Courts of regime were ‘forced out of courtship, forced out of spirit protection; and Cambodia, Case File No E3/775). forced into makeshift extended families.’ Her work is illustrative of the 25 Ibid 3. harm suffered by couples during the Khmer Rouge regime in the context of 26 Ibid 4-5. what international law defines as forced marriage and forced pregnancy. 27 Becker, above n 19, 211. 34 Case 002 Closing Order [844]; LeVine, above n 33, 88. 28 Phillip Short, Pol Pol. The History of a Nightmare (2004) 325-326; Kalyanee Mam, 35 Case 002 (Co-Prosecutor’s Rule 66 Final Submission) (Extraordinary Chambers in ‘An Oral History of Family Life under the Khmer Rouge’, above n 21, 3; the Courts of Cambodia, Office of the Co-Prosecutors, Case No: 002/19-09- Becker, above n 19, 211. 2007-ECCC/OCIJ, 16 August 2010) (‘Case 002 OCP Final Submission’) [320]-[322]; de 29 Hannah Arendt, On Violence, cited by Becker, above n 19, 205.

P 10 P 11 Forced Pregnancy during the Khmer Rouge Regime V forced pregnancy during the khmer rouge regime resulted in rape, imprisonment, torture or death.36 In September 1977, Pol Pot, prime minister and highest DK leader, enunciated CPK’s goal to increase the population to 20 Paradoxically, the main purpose of forced marriages was not million within ten to fifteen years.41 This policy was reiterated to form family units, but to serve as a fundamental means to by the leader at a national medical conference, and later before achieve ‘whatever can be done that is a gain for the revolution.’37 the UN by DK’s Deputy Minister for Foreign Affairs Ieng Sary.42 May Mayko Ebihara, who studied a Cambodian village between A witness to Case 002, former member of the revolutionary 1959 and 1960 and returned after the fall of DK, argues that this forces, stated that Pol Pot reaffirmed this policy agenda during policy: a meeting in June 1978.43 This vision drove DK’s highest leader • served to control sexuality; to instruct lower level cadres to ‘arrange’ marriages in order to increase the population.44 • ensured couples would not be emotionally bonded and safeguarded individuals’ loyalty to the revolution; Forced marriages were designed to play a crucial role in the production of children, who would become vital additions to the 38 • guaranteed an increase in the reproduction. regime’s workforce and revolutionary ranks.45 Individuals whose marriages were ‘arranged by Angkar’ did not generally enjoy a 3. Reproduction of the Population normal married life. Couples were separated into different work camps a few days after the wedding ceremony, with regular The CPK required an increased birth rate to support the agrarian visitations for the husband and wife organised to ensure that revolution. An estimated 1.3 million Cambodians died between they would procreate.46 It has been shown that couples were 1970 and 1975, and around two million people deceased due to a regularly instructed to meet again, usually during the time lack of medicines and medical services, starvation, execution, when women were believed to be fertile.47 This further supports or exhaustion from overwork.39 In DK’s propaganda magazine, ‘The Revolutionary Flag,’ the required increase in the population the argument for the reproductive purpose of these marriages. was explained in terms of meeting the needs of Cambodia’s agricultural production.40

002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Special Issue, October-November 1975) Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage During (Extraordinary Chambers in the Courts of Cambodia, Case File no E3/748); the Khmer Rouge Regime, above n 30, 28, 74, 82; LeVine, above n 33, 199. Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Special Issue, December 1976 - 36 de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage During January 1977) (Extraordinary Chambers in the Courts of Cambodia, Case File no the Khmer Rouge Regime, above n 30, 84-86; Ye, above n 30, 470; Nakagawa, E3/25). above n 30, 14-15; Case 002 Closing Order [849- [850]. 41 Case 002 Closing Order [218]. 37 Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Issue 11, November 1976) 42 Case 002 Closing Order [218]; UN GAOR, 22nd sess, 28th mtg, UN Doc A 32/PV.28 (Extraordinary Chambers in the Courts of Cambodia, Case File no E3/139). (11 October 1977) [60]. 38 Ebihara, ‘Revolution and Reformation in Kampuchean Village Culture’, 43 Case 002 (Written Record of Witness Interview) (Extraordinary Chambers in the above n 20, 30. Courts of Cambodia, Office of the Co-Investigating Judges, Case File No 39 Meng Try Ea identifies 1.3 million people deceased during the Civil War E3/4593, 25 February 2010) Answer 4. between 1970-1975, and 1 million during the Khmer Rouge regime. See 44 Ibid. Meng-Try Ea, ‘Recent Population Trends in Kampuchea’ in David A. 45 Ebihara, ‘Revolution and Reformation in Kampuchean Village Culture’, Ablin and Marlowe Hood (eds), The Cambodian Agony (Armonk, 2nd ed, 1990) above n 20, 30; Becker, above n 19, 224; Mam, ‘An Oral History of Family 3, 6-7. Estimates of the number of people deceased during the DK regime Life Under the Khmer Rouge’, above n 21, 35-36; Ye, above n 30, 470; Case diverge, ranging from 740,000 to 3.3 million people. See Dy Kamboly, A 002/01 (Transcript of Trial Proceedings, Trial Day 179) (Extraordinary Chambers in History of Democratic Kampuchea (Documentation Center of Cambodia, the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007-ECCC/ 2007) 3, footnote 1. TC, 9 May 2013) 119. 40 Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Special Issue, September 1977) 46 Kalyanee Mam, Women as Instruments for Social Change, above n 23, 35; Becker, (Extraordinary Chambers in the Courts of Cambodia, Case File no E3/11); Case above n 19, 257. 47 Case 002 OCP Final Submission [321]; Becker, above n 19, 257. P 12 P 13 Forced Pregnancy during the Khmer Rouge Regime V forced pregnancy during the khmer rouge regime

B. Rape within Forced Marriages for the consummation of marriages.55 This is consistent with an increase in the birth rate in Cambodia from 1977.56 Subsequent to the wedding ceremony, newly-wed couples were usually compelled to have sex and consummate forced marriages Rape within forced marriages was encouraged and perpetrated under the threat of punishment.48 To ensure that couples would with impunity.57 Nearly one-quarter (24.5%) of the respondents have sexual relations after the weddings, Khmer Rouge cadres often spied on couples during the night.49 for TPOs report on forced marriages have been victims of spousal abuse, 21.4% of whom experienced rape and sexual abuse.58 A A participant to a study on forced marriages during DK conducted by Transcultural Psychosocial Organisation (TPO) explained how participant to TPO’s study on forced marriages reported that two she was coerced into a forced marriage and forced to have sexual cadres assisted her husband in raping her: relations in order to survive during the regime: People who were married at that time were treated like I just accepted the marriage and had sexual relations to animals. We could not protect our bodies [genitals], like save my life. Then I had children with my husband, and our parents had protected our bodies. I was raped and they that is the reason I continued to live with him.50 stayed there to watch... We were forced to mate like dogs In her systematic study of weddings and births during the DK and cats.59 regime, Peg LeVine found that 40% of the couples ‘married by A respondent to Kasumi Nagakawa’s study on sexual and gender- Angkar’ were told to have sex by Khmer Rouge cadres.51 In most cases, it was men who were approached by cadres and told to based violence during the DK regime described her ordeal after have sex, while women were not informed.52 Most of these having been forced to marry: couples thought they were being monitored during the night.53 At the first day after the wedding, he beat me because I did LeVine reports an increase in this practice between January not love him and refused to have sex ... he hit me on the 1977 and the end of the regime, with 60% of the couples being thighs with his hands so I couldn’t struggle and it made it coerced into consummating their marriages.54 Respondents easier for him to have sex with me.60 within that period accounted for a practise of post-wedding huts being built with the specific purpose of serving as a space DK’s mission certainly contemplated gender roles in Cambodian traditional society. Women have been traditionally subordinated 48 Theresa de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced to men and expected to comply with a husband’s sexual requests. Marriage During the Khmer Rouge Regime, above n 30, 22; Theresa de Langis and Ebihara notes with regards to conjugal sexual relations that Silke Studzinsky, Briefing Paper on the ECCC, the Cambodian Women’s Hearing, and ‘married women come to accept it with at least resignation or Steps for Addressing Sexual Violence under the Khmer Rouge Regime (2012) [39]; Case 002 Closing Order [1447]. 49 de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage 55 Ibid 89. During the Khmer Rouge Regime, above n 30, 54, 78; Theresa de Langis and Silke 56 According to Meng-Try Ea, the fall in the birth rate deepened after 1973, Studzinsky, Briefing Paper on the ECCC, the Cambodian Women’s Hearing, and Steps for ranging between 20 and 25 births per 1000 inhabitants from 1976-1978. She Addressing Sexual Violence under the Khmer Rouge Regime (2012) [39]; LeVine, above n reports an increase in the birth rate from mid-1977 to mid-1978 to 50 per 33, 89. inhabitants, which she sees as an indication of a trend depicting ‘policies 50 de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage encouraging marriage.’ See Meng-Try Ea, above n 39; 6-7. During the Khmer Rouge Regime, above n 30, 89. 57 de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage 51 LeVine, above n 33, 88. During the Khmer Rouge Regime, above n 30, 102. 52 Ibid 89. 58 Ibid 56. 53 Ibid 89. 59 Ibid 98. 54 Ibid 89. 60 Nakagawa, above n 30, 13.

P 14 P 15 Forced Pregnancy during the Khmer Rouge Regime V forced pregnancy during the khmer rouge regime equanimity.’61 It was habitual for a female elder or the accha (lay Some of the pregnant women were swelling because of lack priest) to inform the new bride of her husband’s prospects during of basic nutrition, like salt and sugar. Khmer Rouge did 62 intercourse. Elder women who were interviewed for a study on not care about the health of pregnant women; they focused sexual beliefs in Cambodia viewed pregnancy as a natural and only on forcing everyone to work, to follow the rule.69 inevitable consequence of the marriage.63 This is illustrated by the testimony of a woman victim of forced marriage: A respondent to LeVine’s survey recounts:

We had nothing to eat, so I did not want children but what After the wedding, Mrs Om, was pregnant within a year, else could I do? … I knew we would have children if we had though her pregnancy was at a time when she had sketchy sex but I didn’t know what to do. I have three children with access to food. She delivered her son in a trench that was 70 him.64 dug alongside this building as protection from bombs. Through forced marriages, the DK regime enacted a state- Women were forced to do gruelling work during their 71 enforced culture of rape.65 Women in forced marriages were pregnancies. Most of them were expected to return to perform 72 forcibly impregnated not only as a consequence of strategic hard work after delivering their children. A woman who fell survival choices but also as a result of traditional patriarchal pregnant in the context of a forced marriage recounts: structures that vitiated consent to sexual relations. An It was about three or four months into my pregnancy, I was alarmingly high number of within forced marriages ended ordered to collect cow dung to use as fertilisers in the rice up in forced pregnancies.66 fields. And they would weigh the cow dung that I collected, and if there was not enough, then I would be criticised. 3. Forced Pregnancies67 And, due to morning sickness, I could not eat well. I became The harm that women went through when forced into pregnancies very emaciated and I was criticised very often during the was broader than visible acts of violence. Lack of access to meetings that I was actually pretending to be sick. And I sufficient food and health care facilities was a permanent threat was forced to carry dirt again. And I couldn’t eat soup. I to the health of pregnant women.68 A participant to Theresa de only ate rice with some pieces of salt. … I would be scolded Langis’ Oral History Project describes the ordeal that pregnant 73 women went through: by the unit’s chief that I was psychologically sick. LeVine offers a detailed narrative of the dreadful journeys undertaken by women who fell pregnant in the context of 61 May Mayko Ebihara, Svay. A Khmer Village in Cambodia (PhD Thesis, Columbia marriages ‘arranged by Angkar’. She identifies appalling effects University, 1968) 491. in the wellbeing of victims produced as a result of the lack of 62 Judith C. Kulig, ‘Sexuality beliefs among Cambodians: Implications for health care professionals’ (1994) 15 (1) Health Care for Women International 69, 71. 63 Ibid. 64 Theresa de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced 69 Theresa de Langis, Interview with Sok Samith (Cambodian Women’s Oral Marriage During the Khmer Rouge Regime, above n 30, 80. History Project, Phnom Penh, 26 January 2013). 65 Ibid 104. 70 LeVine, above n 33, 77. 66 Ibid 14. 71 LeVine, above n 33, 72; Transcultural Psychosocial Organisation, My Testimony: 67 After this report was sent to the printers, the author became aware of the Life Stories of Cambodian Survivors of the Khmer Rouge Regime (2015) 82. paper by Kasumi Nakagawa, Motherhood at War. Pregnancy during the Khmer Rouge 72 LeVine, above n 33, 72; Case 002 OCP Final Submission [1474]. Regime (2015), which should be consulted for a fuller understanding of the 73 Case 002/02 (Transcript of Trial Proceedings, Trial Day 235) (Extraordinary Chambers harm suffered by pregnant women during the DK regime. in the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007- 68 LeVine, above n 33, 72. ECCC/TC, 29 January 2015) 38.

P 16 P 17 Forced Pregnancy during the Khmer Rouge Regime V forced pregnancy during the khmer rouge regime rituals traditionally performed during and after birth work.74 Additionally, women’s responsibility to raise children imposes This cultural disruption has been accounted for a type of ‘spirit- financial implications and places unbalanced burdens on based anxiety’ and developmental setbacks.75 housework.83 This directly affects women’s right of access to education and other activities related to their personal Abortion was not a safe option for women who did not wish to development.84 For those women who were widowed or went carry these pregnancies to term. Procedures were performed by through a divorce, raising children by themselves entailed perilous means, often resulting in the illness or death of the additional challenges. Female-headed households have faced woman.76 Women undergoing abortions endured dangerous extra burdens related to social and economic hardships, procedures, such as using a branch of palm tree to open the stomach, or jumping down from heights.77 A victim of forced particularly regarding: marriage who fell pregnant in the context of that marriage • the lack of capacity women had to perform farming duties; narrates: • the evident difficulties of managing a household while If I wanted to have an abortion, how could I do it? I was playing the role of both and father.85 worried that Angkar would find out, and there was no Falling pregnant under DK rule was a continuous fear for 78 doctor, no medicine for birth control. women.86 Forced pregnancy had specific consequences on victims Death rates of women during childbirth were reportedly high that are different to those produced by the crimes of forced when forced to bear a child under such harsh circumstances.79 marriage and rape. This harm can only be adequately reflected As a consequence of the dreadful living conditions, the rate of through the application of a specific legal category before the stillbirths and spontaneous abortions was astonishingly high, ECCC. imposing further trauma on pregnant women.80 Most of these women had no support whatsoever during such traumatic episodes.81 For some women who carried forced pregnancies to term, conflicted feeling arose from loving a child conceived in traumatic circumstances.82

74 LeVine, above n 33, 33, 57, 75, 110, 119. 75 Ibid 33, 57. 76 Judith Strasser, Thida Kim, Silke Studzinsky, Sopheap Taing, A Study about Victims’ articipation at the Extraordinary Chambers in the Courts of Cambodia and Gender-Based Violence under the Khmer Rouge Regime (Transcultural Psychosocial Organization Cambodia, 2015) 78. 77 Judith Strasser et al, above n 75, 78; Theresa de Langis, Asia-Pacific Regional Women’s Hearing on Gender-Based Violence in Conflict – Report on the Proceedings 2012 (Cambodian Defenders Project, 2012) 16. 78 de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced Marriage During the Khmer Rouge Regime, above n 30, 80. 79 LeVine, above n 33, 77. 83 Committee on the Elimination of Discrimination against Women, General 80 LeVine reports 11 dead births and 6 spontaneous abortions among the 70 Recommendation No. 21. Equality in Marriage and Family Relations, 13th sess, UN Doc women who fell pregnant in the context of ‘conscripted marriages.’ See A/49/38 (1994). LeVine, above n 33, 77. 84 Ibid. 81 Ibid 88, 130. 85 Theresa de Langis et al, Like Ghost Changes Body: A Study on the Impact of Forced 82 Interview with Silke Studzinsky, former ECCC Civil Party Lawyer (Phnom Marriage During the Khmer Rouge Regime, above n 30, 16, 61. Penh, 5 December 2015). 86 Ibid 80.

P 18 P 19 Forced Pregnancy during the Khmer Rouge Regime VI acknowledging forced pregnancy

VI acknowledging forced pregnancy as a distinct crime in the ECCC proceedings

Forced pregnancy may be prosecuted before the ECCC through the provision that codifies ‘other inhumane acts’ as a crime against humanity under Article 5 of the ECCC Law.87 This residual provision criminalises a conduct that is similar in character to the other listed in Article 5 of the ECCC Law but does not fit within one of the other specified underlying crimes.88 The present section puts forward the claim that forced pregnancy constitutes a distinct crime against humanity, which should be acknowledged in the ongoing trial and investigations before the Court.

A. Forced pregnancy as an Inhumane Act ECCC jurisprudence recognises ‘other inhumane acts’ as a crime against humanity in its own right established under customary international law before 1975.89 This provision has already been employed by the ECCC in Cases 001 and 002/01 to criminalise a range of acts, including the deplorable conditions of detention

87 Law on the Establishment of the Extraordinary Chambers with inclusion of amendments as promulgated on 27 October 2004 (‘ECCC Law’); Case 002 (Order on Request for Investigative Action Concerning Forced Marriages and Forced Sexual Relations) (Extraordinary Chambers in the Courts of Cambodia, Office of the Co-Investigative Judges, Case File no 268/2, 18 December 2009) (‘Case 002 Investigative Order on Forced Marriages and Forced Sexual Relations’) [11]. 88 Case 001 (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, 26 July 2010, Case File No E188) (‘Case 001 Judgment’) [367], Case 002/01 (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, 7 August 2014, E313) (‘Case 002/01 Judgment’) [437]; Prosecutor vs Kordić & Čerkez (Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No. IT-95-14/2-A, 17 December 2004) [117]. 89 Case 002 (Decision on Ieng Sary’s Appeal Against the Closing Order) (Extraordinary Chambers in the Courts of Cambodia, Pre-Trial Chamber, 13 January 2011) (‘Case 002 Decision on Ieng Sary’s Appeal Against the Closing Order’); Case 002/01 Judgment [435] -[436]. P 20 P 21 Forced Pregnancy during the Khmer Rouge Regime VI acknowledging forced pregnancy of detainees of S-21 prison, enforced disappearances, forced humanity.93 International human rights treaty law and other transfers, attacks against human dignity such as deprivation rights deriving documents recognise as a set of adequate food, shelter, medical assistance and minimum of civil, political, economic, social and cultural rights affecting sanitary conditions.90 the sexual and reproductive life of individuals and couples.94 In order to determine whether forced pregnancy constitutes an Already in 1968, the Teheran International Conference on Human inhumane act under Article 5 of the ECCC Law, the Court must Rights explicitly acknowledged the basic right to determine assess: freely and responsibly the number and spacing of children.95 This right has been later incorporated under treaty law: • if the conduct entails the infliction of great suffering and serious injury to mental and physical health of the victims; • Article 10.1 of the International Covenant on Economic, Social and Cultural Rights accords the ‘widest possible • if it is of similar character to the other acts that constitute protection and assistance’ to the family.96 crimes against humanity under Article 5 of the ECCC.91 • Article 17 of the International Covenant on Civil and As explained above, victims of forced pregnancy suffered bodily Political Rights establishes the right of individuals to be and mental harm as a consequence of the crime, enduring: free from interferences in their private lives and family.97 • physical pain as a result of being forced to bear a child • Article 16 (e) of the Convention on the Elimination of all during times of starvation and forced labour, without Forms of Discrimination Against Women recognises the access to health care and being forced to work immediately right of women to decide freely and responsibly on the after delivering their babies. number and spacing of their children, and to have access • mental suffering, derived from their inability to perform to the information, education and means to enable them traditional rituals during and after birth work and to exercise these rights.98 conflicted feeling arising from loving a child conceived in In the last two decades, several international instruments traumatic circumstances, have specifically recognised forced pregnancy as a violation to • socio-economic consequences derived from having to raise international humanitarian and human rights law. Examples a child.92 of this are the 1993 Vienna Conference’s Programme of Action, The specific harm of the crime also extends to forcible impregnated women who endured miscarriages or stillbirths without access 93 Prosecutor vs Zoran Kupreškić (Judgment) (International Criminal Tribunal for to medical and emotional support; and to women who suffered the Former Yugoslavia, Trial Chamber, Case No IT-95-16-T, 14 January 2000) bodily harm as a consequence of performing unsafe abortion [566]. 94 UN Population Fund, Report of the International Conference on Population and procedures. Development, Cairo, 5-13 September 1994, Un Doc A/CONF.171/13/Rev.1 (1995). By drawing upon the standards established under international 95 Proclamation of Teheran, Final Act of the International Conference on Human Rights, Teheran, U.N. Doc. A/CONF. 32/41 (22 April to 13 May 1968) 3. human rights law it is possible to determine whether forced 96 International Covenant on Economic, Social and Cultural Rights, opened for signature pregnancy is of a character similar to other crimes against on 16 December 1966, 993 UNTS 3 (entered into force on 3 January 1976) (‘ICESCR’). 97 International Covenant on Civil and Political Rights, opened for signature on 16 90 Case 001 Judgment [372]-[373]; Case 002/01 Judgment [441] - [458]. December 1966, 999 UNTS 171 (entered into force on 23 March 1976) (‘ICCPR’). 91 Case 001 Judgment [367]-[368]; Case 002/01 Judgment [437]-[438]. 98 Convention on the Elimination of All Forms of Discrimination against Women, opened for 92 See supra Section V. signature on 18 December 1979 1249 UNTS 13 (entered into forced 3 September 1981) (‘CEDAW’).

P 22 P 23 Forced Pregnancy during the Khmer Rouge Regime VI acknowledging forced pregnancy the 1995 Beijing Conference’s Platform for Action, and the UN includes any form of coercion.’105 As previously noted, forced Commission on Human Rights’ Resolution on the Elimination of impregnation during DK occurred in two different manners: .99 Notably, forced pregnancy has been • by compelling forcibly married couples to consummate incorporated as a distinct criminal conduct in the Rome Statute, their unions in order to produce children; which is a fact the Statute of the SCSL and the Regulation of the SPSC.100 incorporated into the ongoing trial in Case 002/02.106 Taking into account the dreadful conditions under which women • through within forced marriage, encouraged were forced to bear children during DK and the great harm on by the regime as part of their strategy to increase the the physical and mental health that this conduct has produced population.107 on victims, it stands to reason that forced pregnancy is similar in character to other underlying crimes against humanity.101 Therefore, it must be considered as a distinct crime against 2. Unlawful confinement humanity under the residual provision of other inhumane acts. The actus reus of the crime of forced pregnancy is the unlawful confinement, involves the illegal deprivation of liberty and B. Elements of the Crime denial of access to abortion.108 Angkar confined most people into living in cooperatives and worksites in accordance with the In order to prove the crime against humanity of forced pregnancy CPK’s instructions.109 Individuals were constantly monitored by under Article 5 of the ECCC Law, it is necessary to assess whether the Chhlop, a surveillance programme by CPK militia members the elements of the crime are met. For these purposes and in established at all levels of the regime.110 absence of any other definition of the crime of forced pregnancy under international criminal law, the following analysis relies Virtually all decisions relating to the victims’ physical on the Elements of Crimes under the Rome Statute.102 environment were made by the local CPK authorities.111 Citizens under DK rule were living in permanent confinement, in a ‘prison without walls’, deprived of their physical liberty and 1. Forcible impregnation fundamental rights, including their right to access health Forcible impregnation requires evidence that the sexual act that services.112 As previously noted, forcibly impregnated women led to the forced pregnancy was not consensual.103 The person who had no safe means to terminate unwanted pregnancies within forcibly impregnates a woman needs not to be the perpetrator of forced marriages, which resulted in an unlawful confinement.113 the crime of forced pregnancy.104 Further, forcibly impregnating a woman ‘does not necessarily require the use of violence, but 105 Machteld Boot, ‘Article 7’ in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Beck/Hart, 2nd ed, 99 Vienna Declaration and Programme of Action of the World’s Conference on Human Rights, 2008). UN Doc A/CONF.157/23 (25 June 1993) [38]; Platform for Action of the Fourth World 106 Case 002 Closing Order [858] - [860]. Conference on Women, UN Doc A/CONF.177/20 (17 October 1995) (‘Beijing 107 See supra Section V. Declaration’) [114]; United Nations Commission on Human Rights, The 108 Chinkin, above n 14, 77. See also Anne-Marie de Brouwer, Supranational Elimination of Violence Against Women, 52nd mtg, UN Doc E/CN.4/1998/52 (17 April Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR 1998). (2005, Intersentia Publishers) 145 - 146. 100 See supra Section IV. 109 Case 002 Closing Order [1356]. 101 Case 001 Judgment [369]; Case 002/01 Judgment [438]. 110 Case 002 Closing Order [1356]. 102 See supra Section IV. 111 Case 002 Closing Order [158] [1393. 103 Milan Markovic, above n 12, 444. 112 Case 002 Closing Order [158] [177] [222 [313]. 104 Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law 113 See supra Section V. (Oxford University Press, 3rd ed, 2014) 371.

P 24 P 25 Forced Pregnancy during the Khmer Rouge Regime VI acknowledging forced pregnancy

3. Specific intent The Trial Chamber (TC) already acknowledged in Case 002/01 that the so called ‘regulation of marriage’ was among the policies Under the Rome Statute, forced pregnancy requires the additional through which the CPK carried out a widespread and systematic intent of ‘affecting the ethnic composition of any population or attack on political grounds against millions of civilians carrying out other grave violations of international law.’ While throughout Cambodia, pursuant to the Party’s objective to build this additional motivation has been construed as a ‘special socialism.118 intent’, such an understanding is not entirely persuasive.114 Kai Ambos suggests that ‘intent’ is an ambiguos term and that if the drafters had sought to require a specific intent in a strong C. Forced pregnancy in the ECCC proceedings volitional sense, this should have been explicitly stated.115 Initially, gender crimes were outside the original prosecutorial International crimes such as genocide, crimes against strategy before the ECCC.119 In October 2008, four victims filed humanity and war crimes are, by definition, grave violations to a complaint to become the first civil parties victims of forced international law.116 In particular, the crime against humanity marriage in the ECCC proceedings.120 Since then, gender crimes of forced pregnancy entails the widespread and systematic have increasingly become a focus of attention before the Court. violation of women’s reproductive rights under international In this context, the ECCC represents an opportune forum to law. Therefore, the added intent of carrying out other grave acknowledge the crime of forced pregnancy as a distinct offence violations of international law is self-referential, as it does not during the rule of DK and to contribute to the development of establish an ulterior motivation that goes beyond the normal gender sensitive jurisprudence in international criminal law. intent regarding the actus reus. 1. Case 002 4. Chapeau requirements On 7 August 2014, DK senior leaders Khieu Samphan and Nuon For forced pregnancy to satisfy the general chapeau requirements Chea were convicted in the first stage of Case 002 (‘Case 002/1’) required for crimes against humanity, it must be proved: for the perpetration of crimes against humanity of murder, political persecution, extermination and other inhumane acts (i) the existence of an attack; between the 17th April 1975 and December 1977.121 In the second (ii) that is widespread or systematic; stage of the trial (Case 002/02), the ECCC is trying both accused for the criminal acts committed in what the Office of the Co- (iii) directed against any civilian population; Investigating Judges (OCIJ) has defined as the ‘regulation of (iv) on national, political, ethnical, racial or religious marriage’, which encompasses the crimes of forced marriage, grounds; rape and forced pregnancy.122 (v) a nexus between the acts of the direct perpetrator and the attack; and 118 Case 002/01 Judgment [193-198]. It has been noted that the term ‘regulation of marriages’ downplays the impact and gravity of the crime of forced marriage (vi) that the accused or the perpetrator has the requisite and connected crimes. See de Langis, Theresa and Silke Studzinsky, Briefing knowledge.117 Paper on the ECCC, the Cambodian Women’s Hearing, and Steps for Addressing Sexual Violence under the Khmer Rouge Regime (2012) [38]. 119 Silke Studzinsky, One Eye Blind? Is the ICC a Model of How Sexual Violence Crimes Should Be Investigated and Treated?’ (2012) . 114 Ambos, above n 11, 102. 120 Ny Chandy and Silke Studzinsky, ‘Press Release: Four victims of forced 115 Ibid. marriage under the Khmer Rouge regime file their complaint to the ECCC’ 116 Ambos, above n 11, 102; Boot, above n 105. (16 October 2008) . 117 Case 002/01 Judgment [177]. 121 Case 002 Judgment. 122 Case 002 Closing Order; Case 002 (Decision on Additional Severance of Case 002 and P 26 P 27 Forced Pregnancy during the Khmer Rouge Regime VI acknowledging forced pregnancy

(i) Investigative stage motherhood and enforced pregnancy.129 ‘Enforced procreation’, thus, is certainly the description of a conduct currently Specific charges of forced pregnancy as a crime against humanity criminalised as forced pregnancy. of other inhumane acts have been requested in Case 002/02 by the Office of the Co-Prosecutors (OCP) and Civil Party Lawyers (CPL).123 On 18 December 2009, the OCIJ granted the request to conduct (ii) Trial stage: recharacterisation and cumulative convictions investigations into the crime of forced marriage throughout Internal Rule 98(2) permits changes to the legal characterisation Cambodia.124 It was noted that the fact that individuals may have of facts contained in the Closing Order.130 It has been already been forced to consummate their marriages could also amount recognised in Case 001 that the TC is not bound by the to the crime against humanity of other inhumane acts on the characterisation performed by OCIJ.131 In order to recharacterise basis of forced pregnancy.125 the facts in the trial, the new legal characterisation must not In the Closing Order for Case 002, the OCIJ referred to the policy go beyond the facts established in the Closing Order. Both the on forced marriage, rape and forced pregnancy as ‘the regulation forced impregnation and the unlawful confinement of women of marriage.’126 In the view of the OCIJ, forced marriages and the during DK rule are incorporated in Case 002 Closing Order.132 This imposition of sexual relations aimed at ‘enforced procreation’ set the basis for a legal recharacterisation of the criminal acts were part of the same common criminal plan to increase the committed in connection to forced marriage. population.127 Among the evidence considered in the trial, it was The ECCC has asserted that a change in the legal characterisation noted the fact that children had been born as a consequence of of the facts is not inherently in breach of an accused’s right to the forced consummation of forced marriages.128 a fair trial.133 In Case 002/02, the accused were made aware of The term ‘enforced procreation’ had not been previously employed the possibility that the charges of forced pregnancy might be in international criminal law. However, the criminal conduct held against them. As previously noted, both the OCP and the in question has been referred to through a number of other terms, such as forced impregnation, forced maternity, forced 129 Robyn Charli Carpenter refers to it as ‘forced maternity’ in ‘Forced Maternity: Children’s Rights and the Genocide Convention’ (2000) 2 Journal of Genocide Research 213. Anne Tierney Goldstein and Siobhán K. Fisher use the term of ‘forced impregnation’, see Anne Tierney Goldstein Recognizing Scope of Case 002/02); (Extraordinary Chambers in the Courts of Cambodia, Trial Forced Impregnation as a War Crime Under International Law (1993) and Siobhán K. Chamber, Case File no E301/9/1, 4 April 2014). Fisher, ‘Occupation of the Womb: Forced Impregnation as Genocide’ (1996) 123 Case 002 (Second Request for Investigative Actions Concerning Forced Marriages and 46 Duke Law Journal 91. Ann E. Cudd uses the term ‘enforced pregnancy’ in Forced Sexual Relations) (Extraordinary Chambers in the Courts of Cambodia, Ann E. Cudd, ‘Enforced Pregnancy, Rape and the Image of Women’ (1990) Co-Lawyers for the Civil Parties, Case File no D188, 15 July 2009) (‘Case 002 1 (2) Philosophical Studies: An International Journal for Philosophy in the Analytic Tradition Second Request’) [28]-[29]; Case 002 (Co-Lawyers for the Civil Parties Fourth Investigative 47. Brook Sari Moshan talks about forced motherhood in Brook Sari Moshan Request Concerning Forced Marriage s and Sexually Related Crimes) (Extraordinary ‘Women, War, and Words: The Gender Component in the Permanent Chambers in the Courts of Cambodia, Co-Lawyers for the Civil Parties, Case International Criminal Court’s Definition of Crimes Against Humanity’ File no D268, 4 December 2009); Case 002 (Civil Parties Closing Brief to Case 002/01) (1998) 22 (1) Fordham International Law Journal 154. (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case 130 Extraordinary Chambers in the Courts of Cambodia, Internal Rules (at 16 File no E295/6/2, 26 September 2013) [204] [214] [215]; Case 002 OCP Final January 2015). Submission [322]. 131 Case 001 Judgment [496]. 124 Case 002 Investigative Order on Forced Marriages and Forced Sexual Relations 132 Case 002 Closing Order [158] [177] [222] [313] [858] [859] [860] [1393]. [11]. 133 Case 001 Judgment [500]; Prosecutor vs Thomas Lubanga Dyilo (Decision 125 Ibid. giving notice to the parties and participants that the legal characterisation of the facts may 126 Case 002 Closing Order [216]. be subject to change in accordance with Regulation 55(2) of the Regulations of the Court) 127 Case 002 Closing Order [217] [1445] - [1447]. (International Criminal Court, Appeals Chamber, Case File no ICC-01/04- 128 Case 002 Closing Order [860]. 01/06, 8 December 2009).

P 28 P 29 Forced Pregnancy during the Khmer Rouge Regime VI acknowledging forced pregnancy

CPL have consistently requested the inclusion of charges on announced that gender crimes are being investigated in the forced pregnancy at all the relevant legal procedural stages. context of Case 004.137 In December 2015, the OCIJ released public The OCIJ acknowledged that the fact that couples were forced statements noting that accused Meas Muth and Yim Tith were to consummate their marriages could also constitute the crime respectively charged in Cases 003 and 004 with the crimes of against humanity of forced pregnancy, and referred to this as forced marriage and rape as crimes against humanity of other ‘enforced procreation’. Nonetheless, the TC should notify the inhumane acts.138 accused that the facts in the Closing Order may be subject to In order to accurately acknowledge the totality of the criminal change in the legal characterisation so as to ensure that their acts committed in connection to forced marriages, the OCP and rights to a fair trial are respected.134 the CPL should request specific charges on forced pregnancy in Acknowledging that the facts related to the ‘regulation of the ongoing investigations. Further, the OCIJ must acknowledge marriage’ may be subject to change in the legal characterisation forced pregnancy as a distinct crime and inquiry witnesses on the would enable the OCP, the Civil Party Lead Co-Lawyers (CPLCL) specific circumstances of pregnancies within forced marriages. and the TC to question the accused on the facts related to pregnancies within forced marriages. This would further enable the CPLCL and the Victims Support Section (VSS) to develop moral and collective reparation projects and non-judicial measures specifically in relation to the crime of forced pregnancy. If sufficient evidence is found, the TC would be able to cumulatively convict the accused on the grounds of forced pregnancy, rape and forced marriage. Cumulative criminal convictions are permissible when they are based on the same conduct if each statutory provision involves a materially distinct element not contained in the other.135 The forced impregnation and unlawful confinement required by the crime of forced pregnancy are not required by the crimes of forced marriage and rape. Multiple convictions will thus serve to reflect the full culpability of the accused and the distinct suffering of victims.136

2. Cases 003 and 004 Cases 003 and 004 are currently under investigation and the proceedings are confidential. On April 2014, the OCP publicly 137 Nicholas Koumjian, ‘International Co-Prosecutor requests investigation of alleged sexual and gender-based violence in Case 004’ (Press Release, 24 April 134 Case 001 (Judgment) [496]. 2014). 135 Case 001 (Judgment) [560] -[561]; The Prosecutor vs Zdravko Mucić, Hazim 138 Extraordinary Chambers in the Courts of Cambodia, ‘Statement of the Delić, Esad Landžo & Zejnil Delalić (Appeals Judgment) (International Criminal International Co-Investigating Judge regarding Case 003’ (Press Release, Tribunal for the Former Yugoslavia, Appeals Chamber, Case No. I IT-96-21-A, 15 December 2015); Extraordinary Chambers in the Courts of Cambodia, 20 February 2001) (Celebici Case) [412] -[413]. ‘Statement of the International Co-Investigating Judge regarding Case 004’ 136 Čelebici Case [429] -[430]. (Press Release, 9 December 2015).

P 30 P 31 Forced Pregnancy during the Khmer Rouge Regime VII Conclusions

VII Conclusions

This paper examines the critical need to acknowledge the crime of forced pregnancy as a distinct crime against humanity under the ‘other inhumane acts’ provision contained in Article 5 of the ECCC Law. To frame forced pregnancy as a consequence of other criminal conduct invisibilises the distinct effects that the crime has had on victims, concealing the nature of their experience. This is significant in an environment in which women have been traditionally subordinated to men. The ECCC has an opportunity to properly address the policy of forced pregnancies implemented during the DK regime, which resulted in physical and psychological harm for women. If the ECCC achieves such a goal, victims will be provided with a gender-sensitive, historical explanation to some of the horrors that they endured during the DK regime. This would entail a proper recognition of DK’s policy, the dimension of the crime and its ongoing impact on society. It would further be milestone for international criminal law.

P 32 P 33 Forced Pregnancy during the Khmer Rouge Regime VIII Recommendations

VIII Recommendations

To the ECCC • To the TC: - to give notice to the accused in Case 002/02 that the facts might be subject to legal recharacterisation with regards to the policy of forced marriage and rape in the context of forced marriage; - to question the accused on the facts related to pregnancies within forced marriages. • To the OCP: - in Case 002/02: to question the accused on the facts related to pregnancies within forced marriages; - in Cases 003 and 004: to request the investigation of forced pregnancy as a distinct crime. • To the OCIJ: - to acknowledge forced pregnancy as a distinct crime in the ongoing investigations in Cases 003 and 004; - to inquiry witnesses on the facts related to pregnancies within forced marriages. • To the CPL: to request the investigation of forced pregnancy as a distinct crime in Cases 003 and 004. • To the CPLCL: to question the accused in Case 002 on the facts related to the pregnancies within forced marriages.

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• To the CPLCL and the Victims Support Section: to develop and implement moral and collective reparation projects and non-judicial measures in relation to the crime of forced IX pregnancy. • To the Public Affairs Office: to mainstream and inform the bibliography public about the crime of forced pregnancy.

To the Royal Government of Cambodia: Agreement between the United Nations and the Government of • Cooperate with the ECCC to ensure the continuation of the Sierra Leone on the Establishment of a Special Court for Sierra investigations in Case 003 and 004. Leone, signed 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002) (‘Statute of the Special Court of Sierra Leone’) • Advance in the elimination of negative stereotypes that have strongly disadvantaged Cambodian women in Ambos, Kai, Treatise on International Criminal Law. Volume II: The Crimes exercising their reproductive rights. and Sentencing (2014) Becker, Elizabeth, When the War Was Over (Public Affairs, 1st ed, To non-governmental organisations and civil society: 1998) • Engage on the analysis, understanding and debate Bedont, Barbara and Katherine Hall-Martinez, ‘Gender Crimes of gender dynamics in Cambodia that have served to Under the International Criminal Court’ (1999) 6 Brown Journal invisibilise the crime of forced pregnancy in Cambodia’s of World Affairs 65 transitional justice process. Boon, Kirsten, ‘Rape and Forced Pregnancy under the ICC • Bring attention to the issue of reproductive rights during Statute: Human Dignity, Autonomy and Consent’ (2000- peacetime. 2001) 32 Columbia Human Rights Law Review 625 Boot, Machteld, ‘Article 7’ in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Beck/Hart, 2nd ed, 2008) Brickell, Katherine, ‘Plates in a basket will rattle: Marital dissolution and home ‘unmaking’ in contemporary Cambodia’ (2014) 51 Geoforum 262 Carpenter, Robyn Charli, ‘Forced Maternity: Children’s Rights and the Genocide Convention’ (2000) 2 Journal of Genocide Research 213 Carpenter, R. Charli, Forgetting children born of war: setting the human rights agenda in Bosnia and beyond (Columbia University Press, 2010) Case 001 (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, 26 July 2010, Case File No E188) (‘Case 001 Judgment’) P 36 P 37 Forced Pregnancy during the Khmer Rouge Regime IX Bibliography

Case 002 (Civil Parties’ Co-Lawyers’ Request for Supplementary Preliminary Case 002 (Order on Request for Investigative Action Concerning Forced Investigations) (Extraordinary Chambers in the Courts of Marriages and Forced Sexual Relations) (Extraordinary Chambers in Cambodia, Co-Lawyers for the Civil Parties, Case File no the Courts of Cambodia, Office of the Co-Investigative Judges, D288/6.11, 9 February 2009) Case File no 268/2, 18 December 2009) (‘Case 002 Investigative Order on Forced Marriages and Forced Sexual Relations’) Case 002 (Closing Order) (Extraordinary Chambers in the Courts of Cambodia, Office of the Co-Investigating Judges, Case File Case 002 (Revolutionary and Non-Revolutionary: World Views Regarding the No.: 002/19-09-2007-ECCC-OCIJ, 15 September 2010), as per Matters of Family Building: An accurate re-print of the Youth issue dated amended by the Pre-Trial Chamber on 13 January 2011 (‘Case 2 February 1974, CPK East Zone Political-Military Ministry, 2 June 1975) 002 Closing Order’) (Extraordinary Chambers in the Courts of Cambodia, Case File No E3/775) Case 002 (Co-Lawyers for the Civil Parties Fourth Investigative Request Concerning Forced Marriage s and Sexually Related Crimes) Case 002 (Second Request for Investigative Actions Concerning Forced (Extraordinary Chambers in the Courts of Cambodia, Co- Marriages and Forced Sexual Relations) (Extraordinary Chambers in Lawyers for the Civil Parties, Case File no D268, 4 December the Courts of Cambodia, Co-Lawyers for the Civil Parties, Case 2009) File no D188, 15 July 2009) (‘Case 002 Second Request’) Case 002 (Co-Prosecutor’s Rule 66 Final Submission) (Extraordinary Case 002/01 (Transcript of Trial Proceedings, Trial Day 179) (Extraordinary Chambers in the Courts of Cambodia, Office of the Co- Chambers in the Courts of Cambodia, Trial Chamber, Case Prosecutors, Case No: 002/19-09-2007-ECCC/OCIJ, 16 August File No 002/19-09-2007-ECCC/TC, 9 May 2013) 2010) Case 002/02 (Transcript of Trial Proceedings, Trial Day 235) (Extraordinary Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Special Issue, Chambers in the Courts of Cambodia, Trial Chamber, Case October-November 1975) (Extraordinary Chambers in the Courts File No 002/19-09-2007-ECCC/TC, 29 January 2015) of Cambodia, Case File no E3/748) Case 002 (Written Record of Witness Interview) (Extraordinary Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Issue 11, November Chambers in the Courts of Cambodia, Office of the Co- 1976) (Extraordinary Chambers in the Courts of Cambodia, Investigating Judges, Case File No E3/4593, 25 February 2010) Case File no E3/139) Answer 4 Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Special Issue, Case 002/01 (Judgment) (Extraordinary Chambers in the Courts of December 1976 - January 1977) (Extraordinary Chambers in the Cambodia, Trial Chamber, 7 August 2014, E313) (‘Case 002/01 Courts of Cambodia, Case File no E3/25) Judgment’) Case 002 (CPK Magazine entitled: ‘The Revolutionary Flag’, Special Issue, Chandler, David, A History of Cambodia (Westview Press, 2000, 3rd September 1977) (Extraordinary Chambers in the Courts of ed) Cambodia, Case File no E3/11) Chinkin, Christine, ‘Fundamentals of International Criminal Case 002 (Decision on Ieng Sary’s Appeal Against the Closing Order) Law, Gender-related Violence and International Criminal Law (Extraordinary Chambers in the Courts of Cambodia, Pre- and Justice’ in Antonio Cassese (ed), The Oxford Companion to Trial Chamber, 13 January 2011) (‘Case 002 Decision on Ieng International Criminal Justice (Oxford University Press, 2009) 75 Sary’s Appeal Against the Closing Order’) Committee on the Elimination of Discrimination against Women, General Recommendation No. 21. Equality in Marriage and Family Relations, 13th sess, UN Doc A/49/38 (1994)

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Convention on the Elimination of All Forms of Discrimination against Women Ebihara, May Mayko, ‘Revolution and Reformation in opened for signature on 18 December 1979 1249 UNTS 13 Kampuchean Village Culture’ in David A. Ablin and Marlowe (entered into forced 3 September 1981) (‘CEDAW’) Hood (eds), The Cambodian Agony (Armonk, 2nd ed, 1990) 16 Coulter, Chris, Bush Wives and Girl Soldiers. Women’s Lives Through War Extraordinary Chambers in the Courts of Cambodia, Internal Rules and Peace in Sierra Leone (Cornell University Press, 2009) (at 16 January 2015) Cudd, Ann E., ‘Enforced Pregnancy, Rape and the Image of Extraordinary Chambers in the Courts of Cambodia, ‘Statement Women’ (1990) 1 (2) Philosophical Studies: An International Journal for of the International Co-Investigating Judge regarding Case Philosophy in the Analytic Tradition 47 003’ (Press Release, 15 December 2015) de Brouwer, Anne-Marie, Supranational Criminal Prosecution of Sexual Extraordinary Chambers in the Courts of Cambodia, ‘Statement Violence: The ICC and the Practice of the ICTY and the ICTR (Intersentia of the International Co-Investigating Judge regarding Case Publishers, 2005) 004’ (Press Release, 9 December 2015) de Langis, Theresa, Asia-Pacific Regional Women’s Hearing on Gender- Fisher, Siobhán K., ‘Occupation of the Womb: Forced Based Violence in Conflict – Report on the Proceedings 2012 (Cambodian Impregnation as Genocide’ (1996) 46 Duke Law Journal 91 Defenders Project, 2012) Goldstein, Anne Tierney, Recognizing Forced Impregnation as a War de Langis, Theresa and Silke Studzinsky, Briefing Paper on the ECCC, Crime Under International Law (1993) the Cambodian Women’s Hearing, and Steps for Addressing Sexual Violence Harris Rimmer, Susan Gail, Transitional Justice and the Women of East under the Khmer Rouge Regime (2012) Timor (PhD Thesis, Australian National University, 2008) de Langis, Theresa, Interview with Sok Samith (Cambodian Heuveline, Patrick and Bunnak Poch, ‘Do Marriages Forget their Women’s Oral History Project, Phnom Penh, 26 January 2013) Past? Marital Stability in Post-Khmer Rouge Cambodia’ (2006) de Langis, Theresa, Judith Strasser, Thida Kim, Sopheap Taing, 43 (1) Demography 99 Like Ghost Changes Body: A Study on the Impact of Forced Marriage Human Rights Watch, Shattered Lives: Sexual Violence during the During the Khmer Rouge Regime (Transcultural Psychosocial Rwandan Genocide and its Aftermath (1996) Organisation, 2014) International Covenant on Civil and Political Rights, opened for signature Drake, Alyson M., ‘Aimed at Protecting Ethnic Groups or Women? on 16 December 1966, 999 UNTS 171 (entered into force on 23 A look at Forced Pregnancy Under the Rome Statute’ (2012) 18 March 1976) (‘ICCPR’) (3) William & Mary Journal of Women and the Law 595 International Covenant on Economic, Social and Cultural Rights (ICESCR), Dy, Kamboly, A History of Democratic Kampuchea opened for signature on 16 December 1966, 993 UNTS 3 (entered (Documentation Center of Cambodia, 2007) into force on 3 January 1976) (‘ICESCR‘) Ea, Meng-Try, ‘Recent Population Trends in Kampuchea’ International Criminal Court, Elements of Crimes (2011) in David A. Ablin and Marlowe Hood (eds), The Cambodian Agony (Armonk, 2nd ed, 1990) 3 Interview with Silke Studzinsky, former ECCC Civil Party Lawyer (Phnom Penh, 5 December 2015) Ebihara, May Mayko, Svay. A Khmer Village in Cambodia (PhD Thesis, Columbia University, 1968) Koumjian, Nicholas, ‘International Co-Prosecutor requests investigation of alleged sexual and gender-based violence in Case 004’ (Press Release, 24 April 2014)

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Kulig, Judith C., ‘Sexuality beliefs among Cambodians: Prosecutor v Brima et al, (Amended Consolidated Indictment) (Special Implications for health care professionals’ (1994) 15 (1) Health Court for Sierra Leone, Appeals Chamber, SCSL-2004-16-PT, 13 Care for Women International 69 May 2004) Law on the Establishment of the Extraordinary Chambers with inclusion of Prosecutor vs Brima et al, (Judgment) (Special Court for Sierra amendments as promulgated on 27 October 2004 (‘ECCC Law’) Leone, Appeals Chamber, SCSL-2004-17-A, 22 February 2008) (‘AFRC Appeals Judgment’) LeVine, Peg, Love and Dread in Cambodia. Weddings, Births and Ritual Harm under the Khmer Rouge (NUS Press, 2010) Prosecutor v Brima et al (Judgment) (Special Court for Sierra Leone, Trial Chamber II, SCSL-2004-14-16-T, 20 June 2007) (‘AFRC Trial Livy, The Early History of Rome (Harmondsworth, 1960) Judgment’) Mam, Kalyanee, ‘An Oral History of Family Life under the Khmer Prosecutor vs Kordić & Čerkez (Judgment) (International Criminal Rouge’ (Working Paper GS 10, Yale Center for International Tribunal for the Former Yugoslavia, Appeals Chamber, Case and Area Studies, 1998) No. IT-95-14/2-A, 17 December 2004) Mam, Kalyanee, Democratic Kampuchea (1975-1979): Women as Prosecutor vs Thomas Lubanga Dyilo (Decision giving notice to the Instruments for Social Change (Documentation Center of Cambodia, parties and participants that the legal characterisation of the facts may be 2000) subject to change in accordance with Regulation 55(2) of the Regulations Markovic, Milan, ‘Vessels of Reproduction: Forced Pregnancy of the Court) (International Criminal Court, Appeals Chamber, and the ICC’ (2007) 16 Michigan State Journal of International Law 439 Case File no ICC-01/04-01/06, 8 December 2009) McKinley Jr, James, ‘Legacy of Rwanda Violence: The Thousands Prosecutor vs Zdravko Mucić, Hazim Delić, Esad Landžo & Zejnil Born of Rape’, The New York Times (New York) 23 September 1996 Delalić (Appeals Judgment) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No. I IT-96- Moshan, Brook Sari, ‘Women, War, and Words: The Gender 21-A, 20 February 2001) (Celebici Case) Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity’ (1998) 22 (1) Fordham Prosecutor vs Zoran Kupreškić (Judgment) (International Criminal International Law Journal 154 Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-16-T, 14 January 2000) Nagakawa, Kasumi, Gender-based violence during the Khmer Rouge Regime. Stories of survivors from the Democratic Kampuchea (Phnom Regulation No 2000/15 on the Establishment of Panels with Penh, 2nd ed, 2008) Exclusive Jurisdiction over Serious Criminal Offenses, UNTAET/REG/2000/15 (6 June 2000) (‘UNTAET Regulation’) Platform for Action of the Fourth World Conference on Women, UN Doc A/ CONF.177/20 (17 October 1995) (‘Beijing Declaration’) Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (‘Rome Polgreen, Lydia, ‘Darfur’s Babies of Rape Are on Trial From Birth’, Statute’) The New York Times (New York) 11 February 2005 Savorn, Duong and Beini Ye, List of Critical Issues, submitted to Ponchaud, François, ‘Social Change in the Vortex of Revolution’ the Committee on Elimination of Discrimination Against Women by in Karl D. Jackson (ed), Cambodia 1975-1978. Rendezvous with Death Cambodian Defenders Project (CDP) regarding Sexual and Gender-Based (Princeton University Press, 1989) 151 Violence (SGBV) in Conflict in Cambodia (Cambodian Defenders Proclamation of Teheran, Final Act of the International Conference on Human Project, 2013) Rights, Teheran, U.N. Doc. A/CONF. 32/41 (22 April to 13 May 1968)

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Sissons, Miranda, From One Day to Another: Violations of Women’s Reproductive and Sexual Rights in East Timor (East Timor Human Rights Centre Incorporated, 1997) Short, Phillip, Pol Pol. The History of a Nightmare (2004) Takai, Alexandra, ‘Rape and Forced Pregnancy as Genocide before the Bangladesh Tribunal’ (2011) 25 (2) Temple International Law and Comparative Law Journal 393 Transcultural Psychosocial Organisation, My Testimony: Life Stories of Cambodian Survivors of the Khmer Rouge Regime (2015) Troy Cronin, Bridgette A, ‘What is Forced Marriage? Towards a Definition of Forced Marriage as a Crime against Humanity’ (2010) 19 (2) Columbia Journal of Gender and Law 539 UN GAOR, 22nd sess, 28th mtg, UN Doc A 32/PV.28 (11 October 1977) UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5-13 September 1994, Un Doc A/CONF.171/13/ Rev.1 (1995) United Nations Commission on Human Rights, The Elimination of Violence Against Women, 52nd mtg, UN Doc E/CN.4/1998/52 (17 April 1998) Vienna Declaration and Programme of Action of the World’s Conference on Human Rights, UN Doc A/CONF.157/23 (25 June 1993) Werle, Gerhard and Florian Jeßberger, Principles of International Criminal Law (Oxford University Press, 3rd ed, 2014) Wing, Adrien Katherine and Sylke Merchan, ‘Rape, ethnicity and culture: spirit injury from Bosnia to black America’ (1993- 1994) 25 (1) Columbia Human Rights Law Review 1 Ye, Beini, ‘Forced Marriages as Mirrors of Conflict Transformation’ (2011) 23 (4) Peace Review: A Journal of Social Justice 469

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Research supported by: